23:0184(23)AR - Army Communications Command, Fort McClellan and Local 1941, AFGE -- 1986 FLRAdec AR
[ v23 p184 ]
23:0184(23)AR
The decision of the Authority follows:
23 FLRA No. 23
UNITED STATES ARMY COMMUNICATIONS
COMMAND, FORT McCLELLAN
Activity
and
LOCAL NO. 1941, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-633
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Jack Clarke filed by the Department of the Army (the Agency)
under section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The dispute before the Arbitrator concerned management's
determination to contract out telephone operator functions. The Union
filed a grievance claiming that the Activity violated the parties'
collective bargaining agreement by failing to provide the Union with a
copy of the pertinent statement of work and other acquisition
information prior to issuance of the bid solicitation. The Union
alleged that this failure deprived it of any viable and meaningful
opportunity to affect management's determination of whether to contract
out. In particular, the Union contended that had it been timely
provided with the specification of contractor wages, it might have been
able to preclude the Activity's determination to contract out. The
Arbitrator found that the grievance was arbitrable and that the Activity
had violated the parties' agreement by not providing the Union president
or her designee timely access to the statement of work involved in the
commercial activities review of telephone services. In discussing a
remedy, the Arbitrator stated in response to the arguments of the Union
that it could not be concluded that but for the breach of the collective
bargaining agreement, the contracting out of telephone services could
not have properly occurred. He also rejected the argument of the
Activity that the procurement action could not be cancelled. He noted
that this argument presumed that contracting out was more economical,
and he stated that until the agreement is complied with, the correctness
of this assumption cannot be known. Accordingly, as a remedy, the
Arbitrator ordered the Activity to cease contracting out the disputed
functions and implementing a reduction-in-force because of the
contracting out until the Activity complied with the requirements of the
collective bargaining agreement. The Arbitrator further ordered the
Activity to restore to their jobs any employees affected by a
reduction-in-force caused by the disputed procurement action.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Agency contends that by finding the
grievance to be arbitrable, the award is deficient as contrary to law
and regulation.
B. Analysis and Conclusions
The Authority concludes that the Agency fails to establish that by
finding the grievance to be arbitrable, the award is deficient. To the
extent that the grievance claimed a violation of the collective
bargaining agreement, the Agency fails to establish that the matter of
the Activity's compliance with the terms of the agreement was not
properly grievable and arbitrable. To the extent that the grievance
subjected the disputed procurement action to arbitral review, the Agency
likewise fails to establish that the award is deficient. As noted, the
Union ultimately contended with respect to the procurement action that
had the agreement not been violated, the Activity's determination to
contract out might have been precluded by applicable procurement law and
regulation.
The Authority has previously indicated that a grievance claiming that
a procurement action was not in accordance with applicable procurement
law and regulation is grievable and arbitrable under the Statute and is
not precluded by law or regulation. See General Services Administration
and American Federation of Government Employees, AFL-CIO, Council 236,
22 FLRA No. 84 (1986); Headquarters, 97th Combat Support Group (SAC),
Blytheville Air Force Base, Arkansas and American Federation of
Government Employees, AFL-CIO, Local 2840, 22 FLRA No. 72 (1986);
American Federation of Government Employees, Local 1904, AFL-CIO and
United States Army Communications and Electronics Materiel Readiness
Command, 16 FLRA 358 (1984); American Federation of Government
Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment
Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), enforced sub nom.
EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S. Ct.
1678 (1986) (per curiam). Further, our decision in Congressional
Research Employees Association and The Library of Congress, 23 FLRA No.
15 (1986), where we found a grievance challenging a procurement action
on the basis of a provision of the collective bargaining agreement not
to be arbitrable, is distinguishable. In contrast to that case, the
Union in this case is not seeking to enforce a provision which is
inconsistent with the Activity's right to contract out. Accordingly,
because the grievance challenged the propriety under procurement law and
regulation of the disputed procurement action, the grievance was
arbitrable.
IV. SECOND EXCEPTION
A. Contentions
In its second exception, the Agency primarily contends that the
Arbitrator's award ordering cancellation of the procurement action is
contrary to section 7106(a)(2)(B) of the Statute.
B. Analysis and Conclusions
In Headquarters, 97th Combat Support Group (SAC), Blytheville Air
Force Base, Arkansas and American Federation of Government Employees,
AFL-CIO, Local 2840, 22 FLRA No. 72 (1986), the Authority addressed for
the first time the remedial authority of an arbitrator in resolving
grievances disputing determinations by agencies to contract out agency
work. In sum, the Authority held that under the Statute and procurement
law and regulation, arbitrators are not authorized cancel a procurement
action. We also held that arbitrators are authorized to sustain
grievances challenging a decision to contract out and direct agencies to
reconstruct the actions on specific grounds only.
Applying our decision in Blytheville AFB to this case, we conclude
that the Arbitrator was not authorized either to cancel the procurement
action or to sustain the grievance to the extent that it directly
challenged the action. The Arbitrator's order that the Activity cease
contracting out telephone services constitutes a cancellation of the
procurement action and therefore is clearly deficient under section 7106
(a)(2)(B) of the Statute. The award directing the Activity to cease any
reduction-in-force (RIF) and to reinstate any employees affected by the
RIF is also deficient because it follows directly from the cancellation.
We also find that the Arbitrator was not authorized to sustain the
challenge to the disputed procurement action and could not have properly
directed reconstruction in this case. The Union essentially claimed
that had it been timely provided with the specification of contractor
wages, it might have been able to preclude, in accordance with
procurement law and regulation, the Activity's determination to contract
out. However, the Arbitrator specifically stated that it could not be
concluded that but for the breach of the collective bargaining
agreement, the contracting out of telephone services could not have
occurred consistent with procurement law and regulation. Accordingly,
his award sustaining the challenge to the procurement action is
deficient.
We decided in Blytheville AFB, slip op. at 6, that an arbitrator can
sustain a challenge to a procurement action and order reconstruction
only on the basis that the agency failed to comply with mandatory and
nondiscretionary provisions of applicable procurement law or regulation.
Since the Arbitrator made no such specific finding in this case, he was
not authorized to sustain the grievance to the extent that it directly
challenged the procurement action, and he could not have properly
directed reconstruction.
We note, however, that nothing in Blytheville AFB precluded the
Arbitrator from finding, as he did, that the Activity violated the
parties' collective bargaining agreement by not providing the Union
president or her designee timely access to the statement of work for the
commercial activities review of telephone services. Nor was the
Arbitrator precluded from sustaining the grievance to the extent of the
claimed violation of the agreement and from awarding a proper and
appropriate remedy for that violation. Because the Arbitrator awarded a
remedy for this violation without the guidance that has now been
provided by Blytheville AFB, we find that the award should be modified
to provide an appropriate remedy. The Activity bargained and agreed to
these provisions as part of the collective bargaining agreement. We
admonish the Activity to abide by these provisions and will order a
remedy accordingly.
V. DECISION
For the reasons stated above, the Arbitrator's award is modified to
provide as follows:
The grievance is sustained to the extent of the claimed
violation of Section 25.2 of the 1982 Agreement. The Activity
shall cease and desist from failing to comply with the
requirements of that section.
Issued, Washington, D.C., August 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY